State v. Nation, 19698-4-III.
| Decision Date | 07 March 2002 |
| Docket Number | No. 19698-4-III.,19698-4-III. |
| Citation | 41 P.3d 1204,110 Wash. App. 651,110 Wn. App. 651 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Sean Paul NATION, Appellant. |
John Troberg, Colville, for Appellant.
Allen C. Nielson, Deputy Prosecuting Attorney, Colville, for Respondent.
Sean Paul Nation appeals from Stevens County convictions of possession of methamphetamine, possession of marijuana, and bail jumping. He contends the court erred in (1) denying his motion to sever the bail jumping count, and (2) allowing a crime lab supervisor to give hearsay testimony pertaining to chemical analysis performed by a nontestifying subordinate technician. We affirm the bail jumping conviction, but reverse and dismiss the two drug charges.
Mr. Nation was charged on June 22, 2000, with the two possession counts involving methamphetamine and marijuana, and one count each of use of drug paraphernalia and third degree driving while license suspended. The charges stemmed from a vehicle stop in Colville.
John A. Troberg was appointed as Mr. Nation's counsel; Mr. Nation was granted conditional release pending trial. He acknowledged in writing that he understood the release conditions, including that failure to appear as required for all future court hearings is a crime punishable by imprisonment. When Mr. Nation failed to appear as required for a September 1 trial status hearing, the court issued a bench warrant for his arrest. On September 13, the State filed a supplemental information adding a bail jumping charge.
Mr. Nation filed a motion to sever the bail jumping charge based upon the following affidavit of Mr. Troberg:
Status hearing was set for Friday, September 1, 2000. Mr. Nation failed to appear. Monday was Labor Day. On Tuesday, September 5, 2000, I had court in Republic and preparations for a jury trial commencing Wednesday, September 6, 2000. On... September 6, ... I called Mr. Nation and reminded him of his court date; he agreed to appear the following day and in fact did appear in court on September 7, 2000. In the meantime, the State filed a Supplemental Information charging Bail Jumping on September 6, 2000.
The undersigned is therefore in a position of being a witness on Mr. Nation's behalf on the substance of my telephone conversation with him on ... September 6.... Since I cannot ethically serve as his advocate in court and also a witness on his behalf, it is respectfully submitted that the court should grant this request to sever the bail jumping count from the previous four counts and to appoint separate counsel so that the undersigned would be free to testify on Mr. Nation's behalf.
Mr. Troberg apprised the court as an offer of proof that Mr. Nation had told him he was cutting firewood with his stepfather and simply forgot about his September 1 court date. The court denied the motion to sever on the basis any testimony of Mr. Troberg would be inadmissible self-serving hearsay.
At trial, the State produced substantial evidence of Mr. Nation's possession of the purported marijuana and methamphetamine. To prove the actual content of these substances, the State produced the testimony of Kevin Fortney, a forensic scientist who supervises the chemistry section of the Washington State Patrol Crime Laboratory. The testing was actually performed by one of Mr. Fortney's technicians, Arnold Melnikoff, who was unavailable to testify because he was on vacation.
Mr. Fortney testified that since he does the same type of work as Mr. Melnikoff and reviews it on a routine basis, he could identify the substances based upon Mr. Melnikoff's notes. Mr. Fortney gave further foundation testimony that a technician writes notes of test observations, places those notes in a case file, and then generates a report. That report is subjected to technical peer review by another analyst or by Mr. Fortney himself. The report is then sent back to the submitting agency along with the evidence. As custodian of the office files, Mr. Fortney personally obtained Mr. Melnikoff's notes from the files and recognized the handwriting and methodology to be Mr. Melnikoff's. Mr. Fortney said the peer review is an example of how forensic scientists use the notes and observations of other forensic scientists to formulate their own opinions.
Over standing defense objection based on hearsay, the court then allowed Mr. Fortney to use Mr. Melnikoff's notes to explain the types of testing and analyses performed and the results of each test. Mr. Fortney then gave his own opinion based upon this data that the substances involved were without a doubt marijuana and methamphetamine.
With regard to the bail jumping count, the State produced evidence at trial that Mr. Nation failed to appear for the September 1 status hearing despite signing the order stating conditions of pretrial release. Mr. Nation testified he missed the hearing because he was cutting wood with his stepfather, William Gumm, and "just forgot." Report of Proceedings (RP) at 101. He would have attended the hearing had he remembered. He received a telephone call from Mr. Troberg on September 6, refreshing his recollection of when he was supposed to be in court. Following that phone call, the plan was for Mr. Nation to come to court the next day to work things out. He did so and was again conditionally released. Mr. Gumm similarly testified that Mr. Nation was cutting firewood on September 1, and that he gave Mr. Nation a ride to court on September 7.
The prosecutor asked Mr. Nation on cross-examination whether his attorney told him on September 6 that a warrant had been issued for his arrest. Mr. Nation responded in the affirmative, but said he nevertheless came to court the next day of his own free will and not because of the warrant. The prosecutor then confirmed with Mr. Nation that it still took him one day to come to court.
Mr. Nation renewed his motion to sever at the close of all the evidence, arguing the prosecutor's inquiries on cross-examination put Mr. Troberg in the position of being a witness because he was the only one who knew that court scheduling caused the reappearance delay. The court denied Mr. Nation's motion and entered into evidence the following stipulation agreed to by both counsel:
The parties stipulate that on September 6, 2000, Mr. Nation was contacted by his attorney in regard to coming to court to quash a warrant for his failure to appear on September 1, 2000. No judge was available on September 6, 2000, and Mr. Nation appeared before the court by arrangement of the parties on September 7, 2000.
RP at 123-24. The court also gave the following curative instruction proposed by the defense:
The issue of whether the defendant appeared in Court on September 6, 2000 or September 7, 2000, is irrelevant to your verdict on the charge of bail jumping. The fact that he did not appear in Court the same day he was contacted by his attorney, on September 6, 2000, appearing instead the following day, is not to be considered by you in reaching a verdict on this charge.
Mr. Nation appeals from his convictions for methamphetamine and marijuana possession and bail jumping.1
Mr. Nation first contends the court committed reversible error by denying his motion to sever the bail jumping count because Mr. Troberg became a witness who Mr. Nation was entitled under the Sixth Amendment right of compulsory process to call at trial. This required Mr. Troberg to withdraw on that charge and the court to sever it for trial. RPC 3.7; Wilkins v. Lasater, 46 Wash.App. 766, 733 P.2d 221 (1987). Mr. Nation argues the error was prejudicial, given that bail jumping is not a strict liability crime and Mr. Troberg was the only person who knew that court scheduling caused the one-day delay in reappearing. Mr. Nation concludes these circumstances may be critical to the jury's determination of whether he knowingly failed to appear in the first instance, thus entitling him to present Mr. Troberg's live testimony instead of being forced into a written stipulation. State v. Pirtle, 127 Wash.2d 628, 652, 904 P.2d 245 (1995) (citing State v. Rice, 110 Wash.2d 577, 598-99, 757 P.2d 889 (1988)). We find no error.
First, CrR 4.3(a)(2) authorizes joinder of offenses "based on the same conduct or on a series of acts connected together." For joinder purposes, a charge of bail jumping is sufficiently connected to the underlying charge if the two offenses are related in time and the bail jumping charge stems directly from the underlying charge. State v. Bryant, 89 Wash.App. 857, 866-67, 950 P.2d 1004 (1998), review denied, 137 Wash.2d 1017, 978 P.2d 1100 (1999). Joinder is proper as a matter of law if these requirements are met and the defendant is not prejudiced thereby. Id. at 867, 950 P.2d 1004. CrR 4.4(b), on the other hand, requires the court to sever offenses whenever "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." A court's ruling on a motion to sever charges is reviewed for abuse of discretion. State v. Bythrow, 114 Wash.2d 713, 717, 790 P.2d 154 (1990).
The Sixth Amendment to the United States Constitution provides: "In all criminal...
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